Retaliation Claim, Based on Reaction to Sexual Harassment Complaints, Survives Summary Judgment Against NYC Dept. of Education

In Bray v. New York City Dept. of Educ., 2018 WL 1558436 (N.Y.Sup. Ct. NY Cty. March 30, 2018, Index No. 158989/2013) (J. Tisch), the court, inter alia, held that plaintiff raised triable issues of fact (and hence denied defendant’s motion for summary judgment) as to her retaliation claim under the NYC Human Rights Law. [1]I addressed the court’s denial of defendant’s motion for summary judgment on plaintiff’s sexual harassment/hostile work environment claim here. The crux of plaintiff’s retaliation claim was that she was subject to disciplinary action after complaining that she was subjected to sexual harassment.

Here is the relevant law governing plaintiff’s retaliation claim, as summarized by the court:

Under the NYCHRL, it is unlawful to retaliate or discriminate against someone because he or she opposed discriminatory practices. Administrative Code § 8-107 (7). Under the broader interpretation of the NYCHRL, “[t]he retaliation … need not result in an ultimate action … or in a materially adverse change … [but] must be reasonably likely to deter a person from engaging in protected activity.” Administrative Code § 8-107 (7). For plaintiff to successfully plead a claim for retaliation under the NYCHRL, she must demonstrate that: “(1) [she] participated in a protected activity known to [the DOE]; (2) [the DOE] took an action that disadvantaged [her]; and (3) a causal connection exists between the protected activity and the adverse action.” Fletcher v Dakota, Inc., 99 AD3d 43, 51-52 (1st Dept 2012). Protected activity under the NYCHRL refers to “opposing or complaining about unlawful discrimination.” Brook v Overseas Media, Inc., 69 AD3d 444, 445 (1st Dept 2010) (internal quotation marks and citations omitted). “A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices … unique to a particular situation.

Applying the law, the court explained:

Here, without making any credibility determinations, plaintiff has raised a triable issue of fact that there was a causal connection between her protected activity and the adverse action. In July 2009, plaintiff specifically opposed discriminatory practices by filing complaints with the DOE and several other agencies, alleging that she was being sexually harassed by her supervisor. Although it is unclear if Jimenez [the alleged harasser] was informally informed of these July 2009 complaints, he formally received notice of them on September 4, 2009.

Shortly thereafter, on October 5, 2009, a disciplinary letter was placed in her file regarding an alleged incident that took place on September 24, 2009. Subsequently, on December 1, 2009, Jimenez placed another disciplinary letter in plaintiff’s file. Finally, on December 11, 2009, Jimenez filed a report recommending that plaintiff be discontinued, or terminated, from her probationary position as assistant principal.

Plaintiff was ultimately removed from her position and reassigned to a teaching position with a lower salary. Although plaintiff eventually received a reappointment to an assistant principal position, she claims to have lost three years in the tenure process.

In light of the above, plaintiff has raised a triable issue of fact that, shortly after complaining about sexual harassment, Jimenez became aware of these complaints and engaged in retaliatory conduct. Accordingly, the DOE’s motion for summary judgment on the retaliation cause of action is denied.

1 I addressed the court’s denial of defendant’s motion for summary judgment on plaintiff’s sexual harassment/hostile work environment claim here.
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